5
cannot be a violation of Article 1(1) of the Convention if it is not accompanied by a
parallel and associated violation of the rights protected by the Convention.
16.
This argument, which I cannot accept, corresponds to a restrictive, atomized
and disaggregated vision of a general obligation to guarantee under the Convention as
a whole. Allow me the metaphor that it would be equivalent to observing only the
nearest tree and losing sight of the forest around it. My interpretation of Article 1(1) –
and also of Article 2 - of the Convention is and always has been much broader, and
evidently aggregative, maximizing the protection under the Convention. I stated this
clearly, in this Court, more than eight years ago, in my dissenting opinion in the Case
of Caballero Delgado and Santana versus Colombia (judgment on reparations of
January 29, 1997). Allow me to recapitulate it here in brief, as a final reflection in this
separate opinion.
17.
States
stated
States
When emphasizing the “comprehensive scope” of the general obligation of
stipulated in Article 1(1) of the American Convention in that dissenting opinion, I
that compliance with this obligation calls for a series of measures from the
Parties to the Convention:
"... to the effect of educating and empowering individuals under their jurisdiction to make
full use of all the protected rights. They include the adoption of legislative and
administrative measures designed to remove obstacles, fill in lacunae, and enhance the
conditions for the exercise of the protected rights (para. 3).
Thus, I added, to deny the “comprehensive scope” of Article 1(1) of the Convention
would be to deprive the American Convention of its effects, since Article 1(1)
"embraces all the rights” that the Convention protects (para. 4).
18.
Subsequently, in the same dissenting opinion in the Case of Caballero Delgado
and Santana, I sought to show that the two general obligations enshrined in the
American Convention - Articles 1(1) and (2) – are “ineluctably intertwined” and I
referred to hypothetical situations to illustrate this (para. 9). Further on, I expanded on
this:
"In my understanding, despite the assertion that there was no violation of Article 2 of the
Convention, the finding of non-compliance with the general duty of Article 1(1) is per se
sufficient to determine to the State Party that it ought to take measures, including of a
legislative character, to guarantee to all persons under its jurisdiction the full exercise of all
the rights protected by the American Convention" (para. 19).
19.
Cases soon appeared in which the Inter-American Court itself took a stance in
this respect. In the Case of Five Pensioners versus Peru (judgment of February 29,
2003), the Court concluded that the defendant State had committed an autonomous
violation of the general obligation embodied in Article 2 of the Convention (of
harmonizing its domestic law with the provisions of this article), in combination with the
general obligation of Article 1(1) thereof (paras. 164-168). Previously, following the
same line of thought, in Case of Castillo Petruzzi et al. versus Peru (judgment of May
30, 1999), the Court determined that a violation of Articles 1(1) and 2 of the
Convention had occurred separately (paras. 204-208). Also, in Case of Baena Ricardo
et al. versus Panama (judgment of February 2, 2001), the Court decided that the
defendant State had failed to comply with the general obligations of Articles 1(1) and
(2) of the Convention, and devoted a whole chapter (No. XIII) of the judgment to this
(paras. 176-184).